(Ed. note: in going through my recent posts in preparation for the upcoming bench/bar, I just realized that I never took this post off "draft". So while it's a year and a half old, since Battlestar Galactica is sort of an evergreen, I thought there might still be some interest in frakking survey evidence).
I have thus far managed to avoid the obvious comment that the Fractus trial before Judge Davis in Tyler this month has been ... fractured ... into four trials (ba-da-bing) but when I saw a particularly interesting pretrial ruling from Judge Love I just couldn't help noticing the similar between the name of the case and a favorite made-up expletive on the Battlestar Galactica series - frak (originally "frack" in the 1978 series).
It's a great word - the YouTube video here explains the word and compiles all the uses during the first season of the new series (with links to season 2-4, proving that somebody has way too much time on their hands). Here I think the new series improved on the original, which was a bit prissy to make full use of the word's potential (although I still like the unforms better). The word's utility is extended yet further by the oil and gas technique (not unknown in East Texas, by the way) of "fracking" which is where you basically give the ground an enema to assist in extracting your petrochemical of choice.
Anyway, this oh-so-versatile word was not used in Judge Love's opinion in the frakking, excuse me, Fractus litigation this week when he dealt with the issue of the admissibility of survey evidence in the face of a Daubert challenge to the experts presenting. In Fractus, the plaintiff commissioned two surveys to determine the value to consumers of "incorporating internal antennas in cell phones in place of external antennas." This survey provided the opinions that internal antennas are 109% as important as keyboards, and contribute between $16.02 and $29.96 to the value of a cell phone, which represented an attempt to quantify the estimated value to consumers of preference for internal antennas in cell phone.
But in Fractus, S.A. v. Samsung, et al., 6:09cv203 (April 29, 2011) Judge Love excluded these surveys, noting that they were not tied to the alleged advantageous characteristics of the frakking patents - I mean the Fractus patents. The plaintiff didn't invent internal antennas, and while it contended its patents were "fundamental" to the operation of internal antennas, the surveys didn't measure how consumers valued the advantages provided by the Plaintiff's technology - just how much customers like internal antennas. Judge Love wrote:
Survey evidence purportedly demonstrating the value of internal antennas not tied directly to Plaintiff’s technology confuses the issues and must be excluded. Allowing the jury to hear such evidence not tied to the claimed invention risks “compensation for infringement [that] punishes beyond the reach of the statute.” ResQNet.com, Inc. v. Lansa, 594 F.3d 860, 869 (Fed. Cir. 2010). Indeed, admissible expert testimony must “carefully tie proof of damages to the claimed invention’s footprint in the market place.” Id.; see also Lucent Technologies, Inc. v. Gateway, Inc., 580 F.3d 1301, 1337 (Fed. Cir. 2009) (the court’s objective is “determining the correct (or at least approximately correct) value of the patented invention, when it is but one feature among many” ) (emphasis added).
But there was a voluminous (as footnotes go) footnote containing a warning, since lawyers are peculiarly unable to leave well enough alone, and most evidentiary exclusions - at least in my experience - are at least implicitly conditional, something a lot of lawyers are phenomenally bad at recognizing. Doors don't open just a crack, as I've heard Judge Ward said many the frakking time - they open all the way. "Absent specific valuations, survey evidence demonstrating that consumers generally prefer cell phones with internal versus external antennas may be relevant if Defendants open the door to such a comparison. For example, if Defendants contend that a particular external antenna is an acceptable noninfringing alternative, evidence of broad consumer demand for internal antennas may rebut the acceptability of external antenna as an alternative. While the Court does not anticipate such evidence, in the event that Defendants take such a position, Plaintiff may approach and request admission of the general survey evidence demonstrating consumer demand for internal antenna – without the specific dollar and percentage valuations." (Emphasis added).